New South Wales Court of Criminal Appeal CITATION : R v Merritt [2002] NSWCCA 368 FILE NUMBER(S) : CCA 60845/01 HEARING DATE(S) : 2 September 2002 JUDGMENT DATE : 2 September 2002 PARTIES : Crown - Respondent Paul Sidney Merritt - Appellant JUDGMENT OF : Beazley JA at 12, 14; Sully J at 13; Simpson J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0200 LOWER COURT JUDICIAL English DCJ OFFICER : COUNSEL : GIO Rowling - Crown RJ Button - Appellant SOLICITORS : SE O'Connor - Crown DJ Humphreys - Appellant CATCHWORDS : conviction of using an offensive weapon to prevent lawful arrest - question of what becomes a forcible entry - whether attempted arrest of appellant was lawful CASES CITED: Lippl v Haines [(1989) 18 NSWLR] 420 TheQueen v O'Neill [2001] NSWCCA 193, 122 ACrim R510 DECISION : (i) appeal allowed; (ii)conviction and sentence quashed; (iii) Court direct entry of a verdict and judgment of acquittal. IN THE COURT OF CRIMINAL APPEAL 60845/01 BEAZLEY JA SULLY J SIMPSON J Monday 2 September 2002 REGINA v Paul MERRITT Judgment 1 SIMPSON J: After a short trial the appellant was convicted of a single charge of using an offensive weapon to prevent lawful arrest. He was sentenced to three years with a non-parole period of three years, two months. 2 He now appeals against conviction. He has sought leave to appeal against the sentence but no separate sumissions have been addressed to that application. The appeal involves a very short point concerning the formalities necessary for police officers to observe before forcibly entering private premises for the purposes of arresting a suspect. During the course of argument the question of what becomes a forcible entry has also emerged. The facts are in a very short compass. 3 On 25 May 2001 two Gosford police officers, Detective Senior Constable Dodd and Senior Constable Little, while on patrol in the Gosford area, observed the appellant driving a Commodore motor vehicle. Dectective Dodd, at least, was aware the appellant was a disqualified driver. They pursued his vehicle for a time but then terminated the chase. 4 At about 1pm on 8 June, Detective Dodd, this time in company with Constable Webster, went to a caravan park in Ourimbah where the appellant lived. They spoke to his sister, Shonna Merritt, at the doorway of the appellant's caravan. Constable Webster then called to the appellant - whom he believed to be inside the caravan - "Police. Paul, I know you're in there. Come out where we can see you". Another woman believed to be the appellant's girlfriend told the police they could not enter without a warrant. The police officers then entered the van to arrest the appellant. They located him in a curtained bedroom section of the van. Detective Dodd asked him to come out and told him he was understand arrest. Detective Dodd said, "Paul, you're only wanted on a couple of driving matters. Don't do anything silly". Constable Webster told the appellant to come out of the caravan showing his hands and said that if he did not do so, "I'll have to spray you". The appellant refused to leave. The appellant moved towards the police officers with a clenched fist. Constable Webster sprayed the appellant with capsicum spray. The appellant sat on a bed and the police officers attempted to immobilise and handcuff him. However Detective Dodd was overcome by the capsicum spray and the appellant was able to break free. He armed himself with a spear which he held above his head and swung it three times in the direction of Constable Webster's face. The appellant threatened to stab both officers. They left the van. The appellant continued to threaten to stab them. Detective Dodd took out his police revolver and ordered the appellant to drop the spear which he lowered but continued to hold. He closed the door of the van, the police officers outside. Additional police officers attended. The appellant was arrested and taken to Gosford Police Station. 5 The only issue in the appeal is whether, in these circumstances, the attempted arrest of the appellant was lawful, that is, whether police officers had the necessary basis for entering the appellant's caravan to arrest him and whether they discharged their duty in doing so. 6 In order to make such an arrest lawful, two conditions are necessary. They are: (i) That there are reasonable and probable grounds for believing that a person sought in relation to the commission of an offence is in the premises, and (ii) That proper announcement is made prior to entry. (See Lippl v Haines [(1989) 18 NSWLR] 420; The Queen v O'Neill [2001] NSWCCA 193, 122 ACrimR 510. Here the appellant does not dispute that the police officers had reasonable and probable cause for believing that he was inside the caravan and that he had committed an offence that would justify his arrest. However, the appellant does challenge the adequacy of the announcement made by the police officers. In my view, that challenge must succeed. 7 In R v O'Neill this Court considered what amounts to proper announcement in similar circumstances. After reviewing the authorities, Mason P with whom Sully and Dowd JJ agreed: "Unless the exigent circumstances exceptionally applies (see Lippl v Haines ) or unless the statute provides to the contrary, the Constable proposing to force entry in order to execute coercive process ... (Cf Plenty v Willow [(1991) 171 CLR 635] (at 641,650 – 651)) Such a search or arrest warrant sought to effect an arrest must state a lawful reason for entry without permission. The cause or purpose that must be announced by the officer and rejected by the resident is a basis for entry without consent. Gleeson CJ refers to this in Lippl v Haines on the officer's 'authority'." 8 Some discussion arose about whether the circumstances in the present case were "exigent" but in this regard it is only necessary to note that the offences in relation to which the officers wished to arrest the appellant had been committed two weeks previously and there was, in the evidence, no reason to believe that the appellant was about to flee. In my opinion, no lawful reason for entry was stated by the police officers before they entered the caravan - it was not until after they had entered that they indicated, and then somewhat obliquely, that "a couple of driving matters" were the reason for intended arrest. That may or may not have been sufficient, if stated before entry. My tentative view was that it would not have been, but it occurred, in any event, too late, after entry had been made. 9 In this respect I would reject the Crown's submission that the police made patently clear that their intention was to arrest the appellant in relation to "driving matters". I would also reject the Crown's submission that, because the caravan door was open, there was no forcible entry. The fact that a door to private premises is open does not give anybody, including police, authority or licence to enter against the will of the occupant. Here, the appellant's girlfriend had made it perfectly clear that no authority or licence was given. "Forcible entry" does not necessarily connote breaking or smashing of part of the premises. It connotes entry against the wishes or the will of the occupant. In those terms that entry was plainly forcible. 10 The point on which, in my view, the appeal should succeed was one not taken at the trial. Indeed counsel who appeared for the appellant at the trial has affirmed an affidavit in which he deposed his belief at the time of the trial was that the appellant's apprehension was lawful. Quite properly and for good reasons, in my opinion, the Crown has not taken any point under rule 4 in this respect. 11 In my opinion, the appeal against conviction must succeed. The orders I propose are: (i). The appeal be allowed. (ii). The conviction and sentence be quashed. (iii). This Court direct entry of a verdict and judgment of acquittal. 12 BEAZLEY JA: I agree. 13 SULLY J: I agree. 14 BEAZLEY JA: The order of the Court is as proposed by Simpson J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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